Ebook Download Beyond the Formalist-Realist Divide: The Role of Politics in Judging
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Beyond the Formalist-Realist Divide: The Role of Politics in Judging
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Review
"Tamanaha has written a provocative challenge to conventional wisdom about the rise of judicial realism. . . . Strongly recommended for scholars and students of law, political science, and history." (Choice)"Beyond the Formalist-Realist Divide is a clearly written and groundbreaking book. Although its focus is historical, its objective--in which it succeeds--is to change the way we think about law today."---Henry Cohen, Federal Lawyer"Tamanaha's book reflects some striking research into the views of (largely forgotten or neglected) 19th-century law professors and jurists, and the material he has brought to our attention will demand attention from legal historians. . . . [W]e should be grateful to Tamanaha for his provocative historical research, for laying down a vigorous challenge that should be met by historians of ideas and social scientists, and for imparting appropriate intellectual caution and modesty to future writers who might otherwise be prone to casual talk about a 'formalist' age in American legal thought."---Brian Leiter, Legal Theory"Tamanaha's . . . book will change the way we think about both formalism and realism, about the history of legal scholarship and about the empirical study of judicial decision making."---Edward Rubin, Law and Politics Review"Beyond the Formalist-Realist Divide will forever change our understanding of American legal realism and its mythical opponent, legal formalism. Generations of judges, lawyers, and scholars have come to see a false picture that pits radically skeptical realists against naïve or deceptive formalists. Tamanaha's magnificent book will open your eyes and change the way you think about the law. Every lawyer and judge should read this book. Every legal scholar must!"--Lawrence Solum, University of Illinois, Urbana-Champaign"Tamanaha makes a very important argument with real verve, and I have no doubt that it will generate very wide interest, controversy, and, I am confident, changes in the way American legal history is presented. He is out to destroy what has become the standard narrative of our legal past. The ball is now in the court of those who wish to preserve that narrative."--Sanford V. Levinson, University of Texas School of Law"This is an excellent book and a very significant contribution to the field. Tamanaha very effectively debunks the traditional, simplistic, yet widely accepted vision of a break between traditional formalism and modern realism. His book may well become a classic historical reference."--Frank B. Cross, author of Decision Making in the U.S. Courts of Appeals
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From the Back Cover
"Beyond the Formalist-Realist Divide will forever change our understanding of American legal realism and its mythical opponent, legal formalism. Generations of judges, lawyers, and scholars have come to see a false picture that pits radically skeptical realists against naïve or deceptive formalists. Tamanaha's magnificent book will open your eyes and change the way you think about the law. Every lawyer and judge should read this book. Every legal scholar must!"--Lawrence Solum, University of Illinois, Urbana-Champaign"Tamanaha makes a very important argument with real verve, and I have no doubt that it will generate very wide interest, controversy, and, I am confident, changes in the way American legal history is presented. He is out to destroy what has become the standard narrative of our legal past. The ball is now in the court of those who wish to preserve that narrative."--Sanford V. Levinson, University of Texas School of Law"This is an excellent book and a very significant contribution to the field. Tamanaha very effectively debunks the traditional, simplistic, yet widely accepted vision of a break between traditional formalism and modern realism. His book may well become a classic historical reference."--Frank B. Cross, author of Decision Making in the U.S. Courts of Appeals
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Product details
Paperback: 264 pages
Publisher: Princeton University Press (November 15, 2009)
Language: English
ISBN-10: 0691142807
ISBN-13: 978-0691142807
Product Dimensions:
6 x 0.8 x 9 inches
Shipping Weight: 13.6 ounces (View shipping rates and policies)
Average Customer Review:
5.0 out of 5 stars
1 customer review
Amazon Best Sellers Rank:
#375,311 in Books (See Top 100 in Books)
I happen to be quite fond of revisionist studies (e.g., "Harding was a great president") because they challenge long-held beliefs, cause you to rethink your fundamental ideas, and get the brain cells jumping. This is just such a book. While I disagree with nearly all of the author's central arguments, it nonetheless merits 5 stars due to its superior scholarship, although it does evidence some methodological problems along the way. After a fine initial chapter which summarizes the book's entire arguments, the first section undertakes to refute decades of academic writing that asserted that for much of the 19th and early 20th centuries, judges argued they did not "make" law but instead simply mechanically derived the answers to legal questions by logical analysis from established principles. In this analysis of "legal formalism," the author's principal targets are folks like Jerome Frank, Grant Gilmore, and Roscoe Pound. Therefore, the author contends, the assertion that the legal realists of the 1920's and 1930's uncovered the truth about judicial decisions, and stripped away layers of obfuscation, to reveal the truth, is a distortion. Rather, the author asserts, everybody recognized that judges were influenced by external factors and not controlled by logic. As we all recall, Holmes asserted as early as 1881 that "the life of the law has not been logic; it has been experience."Part Two focuses upon the legal realists themselves and argues largely that the so called discoveries of the legal realists as to how judges made decisions had been widely recognized for decades before their appearance. Particularly is this true in connection with the historical school of jurisprudence. Even some of the realists themselves realized that much of what was associated with realism's critique of judging was "old hat." The third section of the book looks at "studies of judges." This is where my brain cells started to pop; in the interests of full disclosure I must fess up to having taken a Ph.D. in this area in 1970, although I stopped "professing" in 1977. The author, I think, does not appreciate what these largely statistical quantitative studies are setting out to accomplish. Rather, he generally just writes them off as misguided, apparently because he thinks (mistakenly in my opinion) that these authors are just latter-day legal realists. Moreover, he ignores that the field of judicial behavior is much richer and broader than the single facet he concentrates upon.I found the final section of the book to be the best and quite outstanding. Here the author discusses his theory of "balanced realism," looks at some theoretical writing on the role of "rules" (Schauer and R. Kennedy in particular, with some H.L.A. Hart thrown in), and raises the very vital issue of do we want judges to make decisions straitjacketed by rules, or do we want them to have some flexibility to adapt the rules to enhance the legal system? Included are remarks on Judge Posner's legal pragmatic approach versus that of Ronald Dworkin. These are important issues and the author does a fine job of raising and discussing them. The real danger that lies in these issues, the author believes, is that the public will become excessively skeptical about judging, which would undermine the entire system.Anyone interested in American legal thought generally, and legal formalism and the realists in particular, will find this book must reading. The author's research is impeccable, and 47 pages of notes attest to his thorough command of the literature and the issues (plaudits to "Hein on Line" appear in order). I think the author engages in some unfortunate techniques, such as taking a quote from one individual and arguing others agreed with it; he tends to jump around and juxtapose quotes from different time frames; there is undue reliance on two few indiviuals; one wonders how "reresentative" the quotes he cites really are; and on occasion he engages in vast speculation about judges without any empirical evidence to back him up. Nonetheless, this is a fine book: it stimulates, challenges, enhances the reader's familiarity with the pertinent literature, and raises some vital theoretical issues. So, those of you who believe, as do I, that the realists were a pretty important group of folks in American legal thought, should grit your teeth and jump on the author's roller coaster--the ride is worth the pain!
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